Written by: Lex Protector|May 28, 2018
Written by Sanghamitra Panda and Rutuparna Acharya
Anyone who eats chocolates must have heard the name “Ferraro Rocher”. This mouth-watering, crispy chocolaty balls wrapped in golden coloured wrapper, are produced by an Italian chocolatier Ferrero Spa. These chocolates are especially known and recognised by their packaging and shape. Ferrero has secured trademark registrations in numerous countries including India over the word “FERRERO ROCHER” and for other elements like the packaging, colour and shape of their chocolates, which is called “Trade Dress” in legal language. Golden Passion, a Chinese manufacturer of chocolates was using the same physical characteristics in selling their products, which led to ferraro filing a law suit against this Chinese manufacturer for infringement of their distinct trade dress before the High Court of Delhi.
Trade dress is one of the types of intellectual property rights. Trade dress means and refers to overall visual appearance of product/service, like, packaging, shape, colour scheme, or decor that suggests the source of that product/service for the consumers. Trade Dress basically works as a factor for consumers to identify and distinguish a product/service of one proprietor from that of the other. Thus, it is basically a source identifier.
While deciding the case, the Court held that the trade dress of “Ferraro Rocher” was a well-known trademark. The court held that the adoption and selling of products bearing packing and shape deceptively similar to that of Ferraro Rocher amounts to infringement of the Ferrero Rocher’s registered trade dress. The Court passed interim injunction against Golden Passion restraining it from manufacturing, importing, selling the chocolates, due to its similar shape and packaging as ‘Ferrero’. The court also granted damages of Rs 10 Lac to Ferraro.
This case shows us the increasing awareness of importance of trade dress in India. Earlier, only the words and logos were recognised as forms of trademarks. However, it is no longer the case. The meaning and range of trade dress is quite broad. It refers to overall image or appearance of product/service which includes size, shape, colour combination, texture or décor. If such feature/s of your product or services are distinct and non-functional in nature and are used by consumers to differentiate your products/services from others, then trade dress is a powerful tool to stop others from using confusingly similar packaging or other features, as the case may be. Overall, it will be interesting to see the growing trend and acknowledgement of trade dress protection in India.
The marketers shall advertise the product with distinctive trade dress that would help the consumers to distinguish a particular brand from others. It would be clear from the packaging and visual appearance of such products. The trade dress shall be registered for the easy enforceability. Registration will prevent others from using the similar kind of trade dress, get nation-wide recognition.
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